Worker's Comp Advisory Council Begins Review Process

This information is provided by Government Policy Solutions in Madison.

The Wisconsin Worker's Compensation Advisory Council met Thursday, its first meeting of the 2023-24 legislative session, in its biennial review of state Worker's Compensation laws.

The advisory council, comprised of representatives of labor and management groups in Wisconsin, was created to advise the Wisconsin Department of Workforce Development and the Legislature on recommended changes to Worker's Compensation laws every two years via an "agreed-upon" bill.

A public hearing was held in December 2022 to start getting feedback from the public on possible recommendations for changes. Jim O'Malley, DWD Bureau of Legal Services director, said Thursday that all of the comments received during that public hearing recommended that volunteer EMS personnel have the same worker's compensation coverage for post-traumatic stress disorder (PTSD) that full-time firefighters received in 2021 Wis. Act 29. That comment also frequently appeared in submitted written comments from various parties.

Michael Pochowski, CEO and President of Wisconsin Assisted Living Association, was among those who submitted comments to the advisory council this winter. His comments suggested to:

• Remove minimum permanent partial disability (PPD) ratings for joint replacements.
• Amend s. 102.17 (4) (c), Wis. Stats., to include "self-insured" before employer to help delineate between when an employer makes payment of wages versus an insurance carrier.
• Clarify in s. DWD 80.32 (11) of the Wisconsin Administrative Code why this rating only pertains to compression fractures and the source of the 5% rating.
• Establish a clear definition of "material contributory causative factor".
• Eliminate the requirement for 100 weeks of permanent disability to be in dispute in a case for approval of a compromise agreement and the compromise agreement approval process should be defined in the statutes.
• Approval from OWCH and DWD should not be required for worker's compensation insurance carriers to make advance or lump sum payments in undisputed claims including an interest credit.
• Amend the statutes to allow for employer directed care for the first 90 days of treatment – not including emergency medical care. The employer may provide a list that includes at least four (4) health care providers in different specialties who are geographically accessible to the injured employee. The employee will be permitted to select a "first choice" treatment provider after the 90 day employer directed care is concluded.
• Establish medical treatment guidelines for specific injuries in Wisconsin based upon Official Disability Guidelines (ODG) or another appropriate national model. Health care providers would be mandated to follow these guidelines unless pre-authorization is received by the worker's compensation insurance carrier.
• Require that a Hearing Application cannot be filed by a claimant's attorney or pro se claimant unless accompanied with a valid WKC-16-B from a treating physician, podiatrist, surgeon, psychologist or chiropractor. Mere certified medical records will not be sufficient medical support to file a Hearing Application.

Other comments submitted to the council this winter by other individuals or groups related to:

• Eligibility for worker's compensation coverage for volunteer and standalone EMS personnel.
• Advocating for a medical fee schedule.
• Advocating for more fraud prevention measures.
• Tie medical reimbursement rates to a formula based on what the private insurers pay the facility.
• Comments relating to opioids and physician dispensing, as well as providing reimbursement strategies for repackaged drugs, compounds, and co-packaged drug kits.
• Codify the Opioid Prescribing Guidelines that were established by the Wisconsin Medical Examining Board in 2018.
• Establish a 50 morphine equivalent dose (MED) threshold limitation for prescribing opioids.
• Permit physician dispensing only during the initial visit within 10 days following a work-related injury; Limit the days' supply for any physician dispensed medication to seven (7) days; and require prior authorization for physician dispensed medication in an outpatient setting.
• Adopt the proposed s. 102.425 (3) (am) covering charges for repackaged drugs using the same or similar language that was used in 2014 AB-71 (2013-2014 WCAC WC Agreed Upon Bill).
• Set reimbursement for compounded drugs, co-packaged drug kits, and convenience packs based on the fee schedule rates applicable to the individual products contained in these. Ingredients with no NDC and supplies that are incidental such as gloves, bandages, and syringes are not considered integral to the package and should not be reimbursed without pre-authorization.
• Amend s. 102.425, Wis. Stats., to reflect the current name and publisher of the Red Book to Merative Micromedex Red Book published by IBM; and add Medi-Span PriceRx published by Wolters Kluwer as another average wholesale price (AWP) drug pricing source.
• Proposing that the WCAC provide for: (1), an automatic formula for annually increasing PPD benefits and (2), an automatic schedule bringing an additional number of permanently and totally disabled workers into the supplemental benefit program while also providing for regular periodic increases in those benefits.
• Comments seeking more cost containment measures, including:
• If there is no cost containment, allow employers/carriers the ability to provide options to injured workers and direct medical care for the first 90 days, thus providing proper and immediate work injury expertise to injured workers by the many qualified medical providers in the state.
• If both parties are represented by counsel, the Department and Division of Hearings and Appeals shall approve compromise agreements as submitted by the parties, subject to the following : the calculation o f accrued benefits; the requirement o f a restricted account and appropriateness of attorney fees and costs.
• Amend Permanent and Total Disability payments by setting a limitation to the number of weeks or set a presumptive age of retirement, such as ending eligibility at "old age" social security.
• Adopt appropriate utilization review standards to address consistent outliers in the medical provider community. As an example, Illinois 820 ILCS 305/8.7 provides a workable solution (included).
• Advocating for "meaningful medical containment provisions," including: medical fee schedule; pharmaceutical fee & utilization regulations; limiting provider choice; managed care regulations; utilization review; preauthorization for non-emergency care; treatment limitations; and treatment guidelines.

The advisory council will continue to meet this spring and summer to come up with proposed changes to the Wisconsin Worker's Compensation laws that will ultimately be introduced as state legislation for legislative consideration and action.

Click here to see the summary of all comments received so far by the council this winter.

Click here to see the written correspondence received by the council in recent weeks.